Stacy v. Kemp

97 Mass. 166

Opinion

Chapman, J.

1. The defendant does not deny that evidence was admissible to show that, though the note bears date on a Lord’s day, it was made and given to the plaintiff on a previous day. This fact being established, it appears that the note was given without a "iolation of the Lord’s day by either party If there was any violation connected with the note, it must have been by the silent operation of a legal principle, resulting from the date of the note. It cannot be seriously contended that this was work or labor within the statute.

2. The writing offered in evidence was a mere bill of parcels, and oral evidence was admissible to prove the agreement which was actually made between the parties. Hazard v. Loring, 10 Cush. 267. Hildreth v. O’Brien, 10 Allen, 104. The case differs from Bassett v. Percival, 5 Allen, 345, where there was a formal bill of sale.

It was competent to the defendant to prove that the note was given as well in consideration of a sale of the good will of the milk route, and an agreement not to go into business which should interfere with it, as of a sale of the articles enumerated in the bill of parcels. Agreements of this character are valid, and are often specifically enforced in equity by injunction, and at law by actions for damages. Evidence that the plaintiff has interfered with the route in the manner stated, would tend to show that he has deprived the defendant of a part of the consideration for which the note is given. It was formerly held that such damages must be recovered by a cross-action, and could not be proved and allowed in defence of an action on the note, by way of recoupment. But the doctrine of recoupment of damages was fully established in this court, in Harrington v. Stratton, 22 Pick. 510. See Burnett v. Smith, 4 Gray, 50. It has since been applied in numerous cases, and was already well established in New York. It is an equitable set-off of damages which ought to be deducted from the plaintiff's demand, and for the recovery of which the defendant ought not to be turned round to a cross action. The court are of opinion that it should be applied to a case like the present, where the plaintiff has deprived the defendant of a valuable part of the consideration of the note in suit, if the facts which were alleged shall be proved.

The first exception must be overruled; and the second sustained.